Written By Gopal Krishna on Wednesday, July 19, 2017 | 7:16 AM

In
compliance of the 11 August, 2015 order of Justice J. Chelameswar headed
3-judge bench, Supreme Court's Constitution Bench comprising of Chief
Justice of India, Justice J. Chelameswar, Justice S.A. Bobde, Dr. Justice D.Y.
Chandrachud and Justice S. Abdul Nazeer heard the UID/Aadhaar number case on 18
July 2017 after more than 700 days. Upon
hearing the counsel for the petitioners and respondents, the Constitution Bench
passed the
following order:

“During the
course of the
hearing today, it
seems that it has become essential for us to determine whether
there is any
fundamental right of
privacy under the Indian Constitution. The determination
of this question would essentially entail whether the decision recorded by this
Court in M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and
Ors. - 1950 SCR 1077 by an eight-Judge Constitution Bench, and also, in Kharak Singh vs. The State of U.P. and
Ors. - 1962 (1) SCR 332 by a
six-Judge Constitution Bench,
that there is
no such fundamental right,
is the correct
expression of the constitutional position. Before dealing with the matter any further,
we are of the view that the issue noticed hereinabove deserves to be placed
before the nine-Judge Constitution Bench. List
these matters before
the Nine-Judge Constitution Bench on 19.07.2017. Liberty is granted to the learned counsel appearing
for the rival parties to submit their written briefs in the meantime. “The
9-Judge Bench comprises of Chief justice of India, Justices J Chelameswar, SA Bobde, RK Agarwal, Rohinton Fali Nariman, Abhay Manohar
Sapre, Dr DY Chandrachud, Sanjay Kishan Kaul and Abdul Nazeer.

The judgments in the Kharak Singh case of 1950 and M.P. Sharma case of 1962 had underlined
stated that there was no explicitly articulated Fundamental Right to Privacy
written in the Constitution using the word “Privacy’. The fact is that a
Constitution of India comprises of both written text and unwritten text. The
latter is revealed through judicial decisions.
As far as Fundamental Right to Privacy and Basic Structure is concerned
they get revealed by jurisprudential imagination.

A care reading of
previous relevant judgments underlines that there was no need for the Court to
send the matter of Right of Privacy to a bench larger than five judges, because
five judges can interpret the rulings by six judge bench in Kharak Singh vs. State of UP and others,
and the seven judge ruling in Maneka
Gandhi vs. Union of India & Another, validate the five judge bench of Satwant Singh Sawhney vs. D. Ramarathnam,
Assistant Passport Officer, Government of India, New Delhi & Ors, and
confirm the three judge ruling in Gobind
vs. State of M.P. & Another, in R.
Rajagopal & Another vs. State of Tamil Nadu & Others, Sharada
vs. Dharampal, Selvi & Ors vs.
State Of Karnataka & Anr and the two judge ruling in District Collector v. Canara Bank cases.
The eight judge ruling in M.P. Singh
& Others v. Satish Chandra & Others case is clearly inapplicable,
and the five judge bench can assert that it does not need to be overruled to
decide that there is a Right to Privacy.

In Kharak Singh vs. The
State of U.P., in his order Justice Subba Rao wrote, "An illustration will
make our point clear. A visitor, whether. a wife, son or friend, is allowed to
be received by a prisoner in the presence of a guard. The prisoner can speak
with the visitor; but, can it be suggested that he is fully enjoying the said
freedom? It is impossible for him to express his real and intimate thoughts to
the visitor as fully as he would like. But the restrictions on the said freedom
are supported by valid law. To extend the analogy to the present case is to
treat the man under surveillance as a prisoner within the confines of our
country and the authorities enforcing surveillance as guards, without any law
of reasonable restrictions sustaining or protecting their action."

In the UID/Aadhaar
case, the contention of the Union of India is that implied and empowered
surveillance is not a civil liberty restriction. It is indefensible.

In Gobind v Madhya Pradesh, Justice Mathew stated that the Right to
Privacy flows from Article 19 (1) (a) (freedom of speech and expression), (d)
(freedom of movement) and 21 (right to life and personal liberty).

Privacy or the right to
be let alone is inherent in Article 21. This has been stated in R. Rajagopal v. State of Tamil Nadu (Auto
Shankar Case) and PUCL v Union of
India. In the PUCL case, the Court
laid down guidelines for interception under Section 5 of the Telegraph Act,
1885 in pursuance of the same right.

There is a compelling
reason for the Court to apply the doctrine of prohibition of “unconstitutional
condition” which means any stipulation imposed upon the grant of a governmental
privilege which in effect requires the recipient of the privilege to relinquish
some constitutional right.

The submission of Union
of India demonstrates that it is unreasonable in a special sense because
UID/Aadhaar takes away or abridges the exercise of a right protected by the
Constitution. In Ahmedabad St. Xavier's
College Society v. State of Gujarat, (1974), the Court has drawn on a
verdict from US Supreme Court in Frost
and Frost Trucking Co. v. Railroad Comm to hold that State does not have
the right to impose conditions which require the relinquishment of
constitutional rights. If the state succeeds in compelling the surrender of one
constitutional right as a condition of its favour, it may, in like manner,
compel a surrender of all. It is inconceivable that guarantees embedded in the
Constitution be manipulated out of existence.

It is evident that the
implementation of UID/Aadhaar is an exercise which is forbidden by our
Constitution. If this could be done, constitutional guarantees, so carefully
safeguarded against direct assault, are open to destruction by the indirect,
but no less effective, process of requiring a surrender, which, though in form
voluntary, in fact lacks none of the elements of compulsion. State does not
have the constitutional power to discontinue benefits due to citizens. State’s
power to withhold recognition or affiliation altogether does not carry with it
unlimited power to impose conditions which have the effect of restraining the
exercise of fundamental rights. Infringement of a fundamental right is
nonetheless infringement because it is accomplished through the conditioning of
a privilege. If a Legislature attaches to a public benefit or privilege
restraining the exercise of a fundamental right, the restraint can draw no
constitutional strength whatsoever from its being attached to benefit or
privilege. This is applicable to the Aadhaar Act, 2016.

Notably, Re Kerala
Education Bill (1958) was the first case in India to lay down the doctrine of
the prohibition of “unconstitutional conditions“. The doctrine of
unconstitutional conditions prohibits the State from denying citizens a benefit
by making access to that benefit conditional upon citizens’ abstaining from
exercising any or all of their fundamental rights. This is despite the fact
that there is no antecedent right to that benefit in the first place. It emerges
that no Central or State Government can coerce citizens to access subsidies by
sacrificing their private data by enrolling for UID/Aadhaar given the fact that
they have a right to subsidy. No Government has the constitutional power to
make right to have rights condition precedent.

Apparently, under some
external influence, Central Government’s stance has been insincere from the
every outset. The total estimated budget of the biometric UID/Aadhaar number
project has not been disclosed till date. In any case unless total estimated
budget of the project is revealed all claims of benefits are suspect and
untrustworthy.

After the trashing of
UID/Aadhaar by Lok Sabha’s Parliamentary Standing Committee on Finance and
later by Rajya Sabha, the Constitution Bench of Supreme Court too will now have
the opportunity to see through the coercive and unconstitutional nature of
UID/Aaadhaar Number project when it decides some 25 cases challenging it. In
the course of the arguments and discussion in the Court the entire focus was on
Articles 19 and 21 of the Indian Constitution.

In an affidavit in Supreme Court by the Central Government, it has been submitted that Right to Privacy is a basic human right. (see the scan of relevant text of Unique Identification Authority of India).